Gaborone High Court Judge Leatile Dambe will sometime this year decide if trans-gender people can identify as either male or female in official documents such as driver’s licences and Omang identity cards.
The ground-breaking case follows a petition filed in 2015 by the Lesbians Gays and Bisexuals of Botswana (LEGABIBO) on behalf of a trans-gender plaintiff who was designated male at birth but now wants to use a neutral gender on her official documents.
Trans-gender people are people who have a gender identity or gender expression that differs from their assigned sex. Trans-gender people are sometimes called trans-sexual if they desire medical assistance to transition from one sex to another.
LEGABIBO lawyer Lesego Nchunga confirmed this week that they have filed an application with the High Court challenging a trans-gender woman’s gender marker which indicates that she is a man while she not only identifies as a woman but expresses herself as one.
LEGABIBO wants the High Court to grant a non-binary gender marker for trans-gender people, trans-sexuals, inter-sexes and other non-gender conformists who prefer to be referred to as the gender diverse.
This is the first such case in Africa with a precedent only in America where nine months ago ÔÇô June 2016 ÔÇô Justice Amy Holmes Hehn an Oregon Judge of the Multnomah County circuit court upheld a petition by 52-year-old Jamie Shupe for a non-binary gender classification. The historic decision made Shupe the first legally genderless person in America.
In a similar petition, this time involving an inter-sex plaintiff, a court recognised a third gender for a person born with both male and female genitalia. The landmark decision was, however, overturned in March 2016 by a French appeals court.
The appeals court said it was necessary to find “a fair balance between the protection of the state of persons, which is a public issue, and respect for the private lives of people with a variation of sexual development.”
“This fair balance would allow either for personal records which mention no sexual category, or the modification of the gender which has been assigned to them when it is not in line with their physical appearance and social behaviour.”
The court ruled that as the plaintiff was married and he and his wife had adopted a child, a request to change his civil status “contradicted his physical appearance and social behaviour”.
In the Botswana case, the plaintiff is neither married nor does she have any children.
LEGABIBO’s Communication and Documentation officer, Bradley Fortouin explained that “currently the Botswana Constitution is silent about trans-gender and at the same time it does not recognise transgender persons. It only mentions sexual orientation in the Amended Employment Act of 2010. One is not prohibited to have gender reconstruction surgery, but the problem comes when you have to change your gender on your national identification documents with the Ministry of Labour and Home Affairs
A global report released two years ago by the Open Society Foundations, License to Be Yourself, outlines the issues policy-makers need to consider in giving trans-gender people legal gender recognition, and includes best practices from around the world. The report’s authors admit that these solutions are not “one size fits all” ÔÇô especially because at the time some countries, like the US, were lagging behind.
Argentina is considered the leader in progressive gender marker policies, having passed a law in 2012 that allows individuals to update their gender markers on government-issued documents without any medical or mental health diagnosis.
Several countries including Germany, Australia, New Zealand and Nepal officially recognise a third gender on official forms.
India, Pakistan and Bangladesh also have an official third gender designation for so-called hijra citizens who do not identify as male or female.